MESCHKE, Justice.
Laura Goodwin appeals an Order of the Stutsman County Court, determining that she is mentally ill and that she requires continuing hospitalization and treatment at the North Dakota State Hospital at Jamestown, North Dakota “for an indefinite period or until further Order of the Court.” She contends that the Order was constitutionally erroneous since it was based upon her own testimony, compelled over her objection. We need not decide that question. We reverse and remand for a new hearing on other grounds.
Mrs. Goodwin, age 69, was first committed to the State Hospital for a 90 day period by the Stutsman County Court on October 31, 1984. On January 14, 1985, before the statutory expiration of this Order, the State Hospital filed a Petition for Continuing Treatment pursuant to Sections 25-03.1-21 and 25-03.1-23, N.D.C.C., alleging that she “continues to be mentally ill,”
that she “requires further treatment,” and that “treatment other than hospitalization is not in [her] best interest.” Incorporated by reference was a “Report of a Physician” (not a psychiatrist or clinical psychologist) evaluating her “physical and mental condition” as follows:
“Patient is demented. Has exhibited loss of intellectual abilities that interferes with social or occupational functioning. Memory impairment. Impaired judgment and insight.”
The report of the physician on a printed form concluded that she was “an individual with an organic, mental ... disorder which substantially impairs the capacity to use self-control, judgment and discretion in the conduct of personal affairs and social relations, and is therefore a mentally ill person.” (Underlining in original.) The report also concluded that there was a “serious risk of harm” to herself and “a substantial likelihood of ... suicide as manifested by suicidal threats” and of “substantial deterioration in physical health ... resulting from poor self-control or judgment in providing for one’s shelter, nutrition or personal care.” The physician stated that she was “in need of hospitalization for the following reasons”:
“She remains confused and disoriented. Patient has a tendency to wander, leaving the house without knowledge of husband. Recent memory is poor but memory from past events is fairly good. Aware of surroundsing [stc] but disoriented to time and date. She thinks that the year is 1972 and she is 52 years old.”
At the hearing before the Stutsman County Court on January 23, 1985, there were only two witnesses: Dr. Chiu, a medical doctor,
and Laura Goodwin.
Dr. Chiu haltingly described her condition:
“... deviate ideas and psychiatric behavior ... ”
"... when she was admitted to the hospital, before that, ... she wandered away and then laid on the railroad track and said that no one loved her and no one cared about her and that she wanted to kill herself. * * * That’s from the record.”
“... she still has the ideas that no one cares about her and so no one love her....”
“She knows she in the State Hospital, but she doesn’t remember even her room.”
He diagnosed her condition as “dementia,”
a “so called defect of affection and the present time I think her mental state is more and more deteriorating, confusion ... disorientation more obvious.” He characterized her dementia as “mild, mild to moderate” which impaired her capacity to use self-control and judgment “moderate to markedly.”
Dr. Chiu described her treatment as only medication, Haldol, “a psychotropic medication, in essence to control her deviate idea-tions and psychiatric behavior,” and another medicine to control its side effects. Her treatment plan was to “be continuously receiving these psychotropic medications and nursing supervising.”
When asked if that couldn’t just as well be provided in an out-patient setting, Dr. Chiu stated: -
“Outpatient, she has no place to go, and medical team and Social Services doesn’t believe she should be home because she has had trouble with her husband and both of them was an alcoholic.”
On cross-examination, Dr. Chiu testified:
“Q: Dr. Chiu, isn’t it true that one of the other doctors wrote in the chart that he felt that the Hospital should seek alternative treatment for Laura at a nursing home. Wasn’t that a recommendation?
A: After we asked, your following the recommendation because now she cannot go because no nursing home will take her. After her financial assistance granted, we will try to get her into a nursing home. Until anything — no any contrary with the recommendations.
Q: Actually the hospital is waiting for her to get financial assistance so you can place her in a nursing home?
A: That’s right.
Q: And if she had money today, the Hospital would release her if she could go to a nursing home, right?
A: If it would find that — the adequate nursing home. You have — you know, these days nursing homes they have a waiting list and also they have, ah, criteria to the kind of patient they are going to take and so on.”
And further:
“Q: And she’s not been given any particular suicide precautions, such as one to one?
A: No, ah, she didn’t really come to the point, in the one to one mainly, so these kind they really, they know what’s going on, and then now my judgment feels she to the point deteriorate — and if just like prison condition she has no chance and no anything suddenly come up aggravate I think she most likely, you know, she won’t, sort of, attempt to do that again.
Q: She won’t do that again? No?
A: Of course, no one can say for sure.”
Petitioner’s counsel stated at oral argument that he felt this testimony was weak and that he needed something more to obtain the Order. On this appeal, it is conceded that Mrs. Goodwin’s testimony was essential to her commitment and that the evidence, without her testimony, was insufficient to meet the statutory proof required for indefinite commitment.
Mrs. Goodwin was called by petitioner’s counsel to testify, over objection of her counsel, who took the position that she could not be required to testify. After petitioner’s counsel took the position that this was a “civil commitment proceeding and novel objection,” the County Judge directed Mrs. Goodwin to take the stand.
Although she answered readily and forthrightly, she responded early that “I have a lack of memory, always have had,” and cross examination by petitioner’s counsel demonstrated that she did not remember: where she lived, how long she had been in the hospital, her age (although she apparently remembered her birth year, 1915), whether she had tried to kill herself,
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MESCHKE, Justice.
Laura Goodwin appeals an Order of the Stutsman County Court, determining that she is mentally ill and that she requires continuing hospitalization and treatment at the North Dakota State Hospital at Jamestown, North Dakota “for an indefinite period or until further Order of the Court.” She contends that the Order was constitutionally erroneous since it was based upon her own testimony, compelled over her objection. We need not decide that question. We reverse and remand for a new hearing on other grounds.
Mrs. Goodwin, age 69, was first committed to the State Hospital for a 90 day period by the Stutsman County Court on October 31, 1984. On January 14, 1985, before the statutory expiration of this Order, the State Hospital filed a Petition for Continuing Treatment pursuant to Sections 25-03.1-21 and 25-03.1-23, N.D.C.C., alleging that she “continues to be mentally ill,”
that she “requires further treatment,” and that “treatment other than hospitalization is not in [her] best interest.” Incorporated by reference was a “Report of a Physician” (not a psychiatrist or clinical psychologist) evaluating her “physical and mental condition” as follows:
“Patient is demented. Has exhibited loss of intellectual abilities that interferes with social or occupational functioning. Memory impairment. Impaired judgment and insight.”
The report of the physician on a printed form concluded that she was “an individual with an organic, mental ... disorder which substantially impairs the capacity to use self-control, judgment and discretion in the conduct of personal affairs and social relations, and is therefore a mentally ill person.” (Underlining in original.) The report also concluded that there was a “serious risk of harm” to herself and “a substantial likelihood of ... suicide as manifested by suicidal threats” and of “substantial deterioration in physical health ... resulting from poor self-control or judgment in providing for one’s shelter, nutrition or personal care.” The physician stated that she was “in need of hospitalization for the following reasons”:
“She remains confused and disoriented. Patient has a tendency to wander, leaving the house without knowledge of husband. Recent memory is poor but memory from past events is fairly good. Aware of surroundsing [stc] but disoriented to time and date. She thinks that the year is 1972 and she is 52 years old.”
At the hearing before the Stutsman County Court on January 23, 1985, there were only two witnesses: Dr. Chiu, a medical doctor,
and Laura Goodwin.
Dr. Chiu haltingly described her condition:
“... deviate ideas and psychiatric behavior ... ”
"... when she was admitted to the hospital, before that, ... she wandered away and then laid on the railroad track and said that no one loved her and no one cared about her and that she wanted to kill herself. * * * That’s from the record.”
“... she still has the ideas that no one cares about her and so no one love her....”
“She knows she in the State Hospital, but she doesn’t remember even her room.”
He diagnosed her condition as “dementia,”
a “so called defect of affection and the present time I think her mental state is more and more deteriorating, confusion ... disorientation more obvious.” He characterized her dementia as “mild, mild to moderate” which impaired her capacity to use self-control and judgment “moderate to markedly.”
Dr. Chiu described her treatment as only medication, Haldol, “a psychotropic medication, in essence to control her deviate idea-tions and psychiatric behavior,” and another medicine to control its side effects. Her treatment plan was to “be continuously receiving these psychotropic medications and nursing supervising.”
When asked if that couldn’t just as well be provided in an out-patient setting, Dr. Chiu stated: -
“Outpatient, she has no place to go, and medical team and Social Services doesn’t believe she should be home because she has had trouble with her husband and both of them was an alcoholic.”
On cross-examination, Dr. Chiu testified:
“Q: Dr. Chiu, isn’t it true that one of the other doctors wrote in the chart that he felt that the Hospital should seek alternative treatment for Laura at a nursing home. Wasn’t that a recommendation?
A: After we asked, your following the recommendation because now she cannot go because no nursing home will take her. After her financial assistance granted, we will try to get her into a nursing home. Until anything — no any contrary with the recommendations.
Q: Actually the hospital is waiting for her to get financial assistance so you can place her in a nursing home?
A: That’s right.
Q: And if she had money today, the Hospital would release her if she could go to a nursing home, right?
A: If it would find that — the adequate nursing home. You have — you know, these days nursing homes they have a waiting list and also they have, ah, criteria to the kind of patient they are going to take and so on.”
And further:
“Q: And she’s not been given any particular suicide precautions, such as one to one?
A: No, ah, she didn’t really come to the point, in the one to one mainly, so these kind they really, they know what’s going on, and then now my judgment feels she to the point deteriorate — and if just like prison condition she has no chance and no anything suddenly come up aggravate I think she most likely, you know, she won’t, sort of, attempt to do that again.
Q: She won’t do that again? No?
A: Of course, no one can say for sure.”
Petitioner’s counsel stated at oral argument that he felt this testimony was weak and that he needed something more to obtain the Order. On this appeal, it is conceded that Mrs. Goodwin’s testimony was essential to her commitment and that the evidence, without her testimony, was insufficient to meet the statutory proof required for indefinite commitment.
Mrs. Goodwin was called by petitioner’s counsel to testify, over objection of her counsel, who took the position that she could not be required to testify. After petitioner’s counsel took the position that this was a “civil commitment proceeding and novel objection,” the County Judge directed Mrs. Goodwin to take the stand.
Although she answered readily and forthrightly, she responded early that “I have a lack of memory, always have had,” and cross examination by petitioner’s counsel demonstrated that she did not remember: where she lived, how long she had been in the hospital, her age (although she apparently remembered her birth year, 1915), whether she had tried to kill herself,
where her husband lived, where her home was, the year or the month, or that she was on medication. When asked if she would like to be in a nursing home, if that was possible, she testified: “I don’t know. I’ve never been in one before.” She went on to testify that she had no place to go, no job and no money.
In its findings, the County Court emphasized “[t]hat the respondent exhibited substantial loss of memory in Court.” The Court determined that she was mentally ill “because of her disorientation, impaired functioning,” and that “she would not be able to take care of her own needs without outside help or intervention. ... [Therefore she is a person requiring treatment because there is no appropriate State institution in which the Court can now place her for alternative treatment, the only alternative available at this point and time is the State Hospital. So the commitment will be continued to the State Hospital for an indefinite period.”
The Fifth Amendment to the United States Constitution declares: “No person ... shall be compelled in any criminal case to be a witness against himself.” The same guarantee is reflected in our North Dakota Constitution, Article I, Section 12.
Past lax practices in mental health commitments in this country,
and current
widespread concerns about abuse of mental health commitments around the world
make the issue tendered on this appeal a substantial and grave one. The stark fact
is that incarceration in a barred hospital, for a person who does not require it for his own protection from serious harm or the protection of society from serious harm, is no different than incarceration in a barred jail.
The rights of an individual in a mental health commitment proceeding are not guarded by the carefully designed and protective procedures of our criminal rules, or by the same heightened burden of proof required in criminal proceedings,
but the results can be the same if commitment procedures are abused.
Therefore, we should be cautious not to overlook other fundamental rights in these proceedings, notwithstanding that our State has recently adopted good and thoughtful procedures for mental health commitments.
Some eases have held or suggested the Fifth Amendment right to not be forced to “testify” against yourself applies to mental health incarcerations.
See Tyars v. Finner,
518 F.Supp. 502 (C.D.Cal.1981),
rev’d and remanded on other grounds,
709 F.2d 1274, 1276 (9th Cir.1983);
Suzuki v. Quisenberry,
411 F.Supp. 1113 (D.Hawaii 1976),
modified sub nom. Suzuki v. Yuen,
617 F.2d 173 (9th Cir.1980) (fifth amendment privilege against self-incrimination held inapplicable but questioned whether involuntary commitment can be supported by silence alone);
Lessard v. Schmidt,
349 F.Supp. 1078, 1100 (E.D.Wis.1972),
vacated on other grounds,
414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974),
vacated on other grounds,
421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975);
on remand,
413 F.Supp. 1318 (E.D.Wis.1976);
Haskett v. State,
255 Ind. 206, 263 N.E.2d 529 (1970);
Commonwealth ex rel. Finken v. Roop,
234 Pa.Super. 155, 339 A.2d 764 (Pa.Super.Ct.1975).
Other cases have held or suggested that the right to remain silent in the face of state incarceration actions does not carry beyond traditional “criminal” proceedings to civil mental health commitments.
See Matter of Baker,
117 Mich.App. 591, 324 N.W.2d 91 (Mich.Ct.App.1982) (Cavanagh, J., dissenting).
See also People v. Taylor,
618 P.2d 1127, 1137-40 (Colo.1980);
People v. Keith,
38 Ill.2d 405, 231 N.E.2d 387, 390 (1967)
;
Kraemer v. Mental Health
Board,
199 Neb. 784, 261 N.W.2d 626 (1978);
In re Field,
120 N.H. 206, 412 A.2d 1032, 1034-35 (1980);
Matter of Matthews,
46 Or.App. 757, 613 P.2d 88 (Or.Ct.App.1980);
McGuffin v. State,
571 S.W.2d 56 (Tex.Civ.App.1978).
The United States Supreme Court has not chosen between these views. In the single case where they faced the issue, they sidestepped it (except for Justice Douglas who flatly held the Fifth Amendment did apply to a mental health confinement proceeding), finding an appropriate basis to release the subject without having to decide this critical issue.
McNeil v. Director, Patuxent Institution,
407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972) (Douglas, J. concurring).
Like the United States Supreme Court, we do not decide the issue presented. There are adequate grounds for reversing the commitment in this case, without addressing a fundamental constitutional issue. It is a cardinal rule of decision making to avoid constitutional confrontations where there are appropriate alternative grounds to resolve the case before us.
Mills v. Rogers,
457 U.S. 291, 102 S.Ct. 2442, 2451, 73 L.Ed.2d 16 (1982);
United States v. Raines,
362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960);
State v. King,
355 N.W.2d 807, 809 (N.D.1984);
State ex rel. Stutsman v. Light,
68 N.D. 513, 281 N.W. 777, 780 (1938) (a constitutional question will be decided only when it is properly before the court and the question
must
be decided in order to resolve the controversy).
First, the record in this proceeding is statutorily deficient. Our statutory protections mandate: “... an evaluation of a respondent’s mental status shall be made only by a licensed psychiatrist or clinical psychologist.” N.D.C.C. § 25-03.1-02. Only a physician testified, and only a physician’s report was filed with this petition. Neither specifically identified or incorporated the details of a report by a psychiatrist or a clinical psychologist evaluating Mrs. Goodwin’s mental illness.
Second, we have a definite and firm conviction that a mistake has been made. Our statutory procedures are explicit that a mental health patient has the right “to the least restrictive conditions necessary to achieve the purposes of treatment.” N.D. C.C. § 25-03.1-40(2). Here, the evidence is far from clear and convincing that commitment to the State Hospital is necessary in view of the physician’s testimony that a nursing home would be suitable, if financial assistance were available. Where there is an available “treatment program other than hospitalization ... adequate to meet the respondent’s needs and ... suffi
cient to prevent harm ...,” she is entitled to an order of alternative treatment; N.D. C.C. § 25-03.1-21.
Poverty is not a criterion for commitment. Financial circumstances may be relevant to “availability” of an alternative treatment program. “Availability” of an apparent alternative was not adequately addressed in the evidence before the trial court for its finding that “the only alternative available at this point and time is the State Hospital.”
Accordingly, we reverse the order of indefinite commitment and remand with directions. A new hearing should be held consistent with statutory requirements, at which the availability and appropriateness of alternative treatment in a less restrictive institution, such as a nursing home, must also be fairly considered.
ERICKSTAD, C.J., and LEVINE, VANDE WALLE and GIERKE, JJ., concur.